Constitution Check: Do voters have a right to cast their ballots before Election Day?

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Lyle Denniston looks at the legal issues of allowing voters to go to the polls in early voting, days before Election Day, as a convenience.

The statement at issue:

“We believe states should have the right to set the hours of election and the time of election. There is already ample opportunity for everyone to vote.”

– Ohio Attorney General Mike DeWine, in a statement August 31 announcing plans to appeal a federal judge’s decision to permit in-person voting on the weekend days before Election Day on November 6.

We checked the Constitution, and…

Absentee voting is a long-tradition in American elections, but there is no constitutional right to do so. It is a matter of state choice, and it is commonly allowed, as a convenience to voters whose work or travels make it hard to get to the polls on election day. But a new trend has developed in recent years, and it raises new issues: allowing voters who will be in town on election day a chance to vote in person, but to do so in advance of that day.

The idea behind such early voting is to ease the crowding at polling places on election day. Many times in recent years, especially in general elections, hotly disputed contests have produced heavier turnout of voters, and the result has been long lines–sometimes so long that officials or courts have stepped in to require that the polls stay open longer.

About Constitution Check

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

The courts are beginning to sort out the constitutional implications of in-person early voting, and, in particular, whether there is a right to that convenience or, if there is a right, how far states can go to limit it.

That constitutional question, however, has become immersed in a partisan feud, because studies show that in-person early voting–especially if it occurs on the weekend before Election Day–tends to favor voters who support Democratic candidates. In a number of states, that has produced an interest among Republican legislators and officials in putting some new restrictions on early balloting.

One of the most closely watched examples of this continues to unfold in Ohio–a state that is regarded as vitally important to the election prospects for the presidency this November. The campaigns of President Barack Obama and his GOP rival, Mitt Romney, are focusing major efforts on winning Ohio.

It was predictable, then, that the Obama campaign would sue when the state’s chief election official, Secretary of State Jon Husted, a Republican, banned most voters from casting early ballots on weekends in the month before election day; on the final weekend, no voting can be done after 6 p.m. on Friday. After Husted was barred from doing so by a federal judge last Friday, Ohio Attorney General Mike DeWine began an appeal to a higher court.

The state defended the cutoff by arguing that it was necessary to enable election boards around the state to make their final preparations for balloting on election day. U.S. District Judge Peter C. Economus found that argument unpersuasive. While making clear that voters do not have a constitutional right to vote early, the judge ruled that they do have a definite right to be treated equally in voting opportunities.

The problem the judge found was that, before the recent changes, Ohio had allowed all of its voters to cast early ballots throughout the 35 days before election day, but then, in recent months, it took away that option for some voters while leaving it intact for others.

To accommodate voters in the military who might be sent off to duty with little notice, weekend voting was still an option. For non-military voters, Judge Economus wrote, “weekend in-person early voting no longer exists.” They must vote during working hours of the week, except that in the final two weeks, election offices will be open until 7 p.m. on weekdays (but only until 6 p.m. on the final Friday), the judge noted.

The judge looked at past election data–noting that the state did not dispute the numbers–that showed that 82 percent of all early in-person votes were cast after the workday ended or on weekends, or on the Monday before the election. A disproportionately high number of African-Americans, the data indicated, had voted early.

“Now, except for voters serving in the military or located overseas, voters may cast their votes only during limited working hours and, then, only until 6 p.m. on Friday,” the judge commented. The challengers, he said, claimed that these limitations fell most heavily on “minority and working class voters.”

The Supreme Court, the judge declared, “has reiterated time and again the particular importance of treating voters equally.” The judge quoted from the Court’s famous 2000 ruling in the presidential election case of Bush v. Gore: “Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”

The judge summed up: “In-person early voting is a voting term that had included the right to vote in person through the Monday before Election Day, and, now thousands of voters who would have voted during those three days will not be able to exercise their right to cast a vote in person.” That is a significant injury, the opinion said, adding that the state had provided “little support” for the claim that election boards would not be able to handle both the early voting and the preparations for Election Day balloting.

In addition, the judge did not accept the state’s claim that differing treatment was necessary to accommodate military voters. The state, the opinion noted, did not require election boards to stay open for military voters, on that final weekend, but left it up to each board to decide that on its own, undercutting that argument.

In the order that the state officials are now appealing, Judge Economus ordered that voting be allowed on the Saturday, Sunday, and Monday before Election Day, and told the state to make that uniform in all of its counties.

The dispute now moves on to the Sixth Circuit Court of Appeals in Cincinnati.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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